Citation Nr: 21070872 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-44 955 DATE: November 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to June 1990 and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Veteran died in September 2016. In December 2016, the RO granted substitution to the appellant over the current claim. In August 2019, the appellant was scheduled to have a Board hearing. However, she did not show for the hearing and provided no further notification. This matter was previously remanded by the Board in June 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a low back disability The appellant claims that the Veteran was entitled to service connection for a low back disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran had an examination for his claimed back disability in April 2016. The examiner noted that the Veteran had a diagnosis of degenerative arthritis of the spine. The examiner opined that it was less likely than not that the Veteran's back condition was related to his active service. The examiner stated that the Veteran sustained a compression injury to his cervical spine, which is anatomically separated from his lumbar spine. The examiner noted that the Veteran's separation examination was negative for a lumbar spine condition and that the Veteran's first complaint about his lower lumbar spine was in approximately 2008. Furthermore, the examiner indicated that the Veteran worked in construction and at a quarry for many years lifting very heavy items, which definitely contributed to his lumbar spine condition. In a July 2016 statement, the Veteran stated that his military occupational specialty (MOS) was as a forward observer, which meant that he frequently walked 15 to 30 miles with at least 130 lbs. on his back. An addendum medical opinion regarding the etiology of the Veteran's back condition was obtained in June 2021. The examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by his active service. The examiner noted that the Veteran exited the military in 1991, and that there were no complaints of back pain or injury until 2008. The examiner stated that an injury that that caused progressive spine stenosis and lumbar degeneration that occurred while in the military would have seen complaints or treatment records soon after injury. Additionally, the examiner noted that the Veteran worked in construction for many years post service which likely was the cause of his lumbar spine complaints. The examiner indicated that, while carrying 130 lbs. can certainly cause injury, there were no records noting treatment or complaints of back pain until 2008 when he fell. Upon review of the record, the Board finds that service connection for a back condition is not warranted. The Board finds the June 2021 examiner's medical opinion to be highly probative because the examiner provided an adequate rationale based on the relevant medical evidence of record and the pertinent lay statements. The examiner noted the Veteran's competent lay statements of record regarding his reported in-service back injury from frequently carrying over 130 lbs. and provided an adequate rationale concluding that the Veteran's back condition was likely due back injuries sustained post-service. To the extent that the Veteran believed (and the appellant continues to believe) that the Veteran's back condition is linked to his active service, the Board notes that they are competent to provide testimony concerning factual matters of which they have first-hand knowledge and experiences through their senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of the Veteran's back condition is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's back condition and his military service. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service or based on continuity of symptoms when first noted in service. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include arthritis. However, there is no evidence that symptoms of the Veteran's low back condition were noted in service. Nor is there evidence of the Veteran's back condition having been diagnosed within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. As such, presumptive service connection is not warranted for this disability. In sum, the evidence preponderates against the claim for service connection for a back disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a back disability must be denied. 38 C.F.R. § 3.303. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.